TCPA Defendant Strikes Out on Summary Judgment Bid to Demonstrate Consent to Call
For anyone who still thinks that TCPA defense is a simple or straightforward affair, the decision of Harrington v. RoundPoint Mortgage Servicing Corp., 2017 U.S. Dist. LEXIS 55023 (M.D. Fla. Apr. 11, 2017) is a worthy read.
There, RoundPoint was calling a number that—from its perspective at least—had been supplied by the borrower in underlying account origination records and was twice provided by the borrowers during the servicing effort—once directly by the subscriber to the phone in an inbound call and a second time by a co-borrower who also just happened to be married to the subscriber. Surely, therefore, RoundPoint had the necessary consent to call the number, right?
Wrong, of course (otherwise I would not have written this blog post).
The case was presented to Judge Chappell in the Middle District of Florida via summary judgment. The Court found there were issues of fact every time the phone number was supplied by the Plaintiff.
First, the Court was unconvinced that an underlying construction agreement for the project containing the phone number at issue was properly supplied to the bank financing the deal by Plaintiff’s homebuilder. The Court credited Plaintiff’s declaration—submitted 14 years after the agreement was signed—that the Plaintiff had not agreed that the number could be supplied to the bank supplying the financing at the time. As readers of this blog know, a large number of district court opinions have recently suggested that “closely related” contact to the number by the bank would have been permissible under a “reasonable consumer expectation” test (i.e., when you give your number to a home builder, you expect that your mortgage company might call you on that phone number one day since, you know, the bank is paying for the construction). But Judge Chappell did not analyze the “closely related” or “consumer expectation” tests and simply found that the absence of Plaintiff’s consent to deliver the number to the bank was sufficient to make RoundPoint’s calls illegal. (Notably, however, Defendant failed to explain how the construction agreement ended up in the loan file to begin with, so there’s that.)
Next, RoundPoint argued that Plaintiff had supplied his number in connection with an inbound call in 2010. We see these sorts of situations all the time, of course. A phone number is associated with an account following an inbound contact. The note does not specifically state what happened on the call, but the proximity of the call to the date the number is added to the account, coupled with testimony regarding policies and procedures regarding when a number might be added, is usually sufficient to carry the day. But in Harrington, the Court credited Plaintiff’s testimony that he had not provided his number in the phone call—again, provided years after the fact— over the Defendant’s version of events. The Court was unmoved by the vague note in RoundPoint’s system of record reading: “BRRW CALLED RQST STATS OF ACCT.” No reference to phone number on the note = no finding of consent.
And then things really get interesting. Plaintiff’s wife decided that she wanted information about the loan one hot summer’s day in 2011. Wife was sick in bed so she had Daughter call for her and pretend to be Wife. Daughter was armed with information necessary to defeat RoundPoint’s security questions intended to validate that it was talking to Wife (a co-borrower on Plaintiff’s loan). The info Daughter was armed with included the cell phone number at issue—which both co-borrowers knew was the primary contact established on the account. So when Daughter called RoundPoint and was asked “what’s your phone number?” she admittedly responded by including the phone number that RoundPoint had been calling (and thereafter continued to call). RoundPoint breathlessly argued to the Court that surely this constituted consent, but the Court again disagreed. In essence, the Court found that although Daughter was Wife’s agent for purposes of the call, RoundPoint failed to show that Wife had Husband’s permission to provide the number in the first place (hey, this is Trump’s America after all). The Court failed to treat either the marital relationship between Plaintiff and Wife, or the contractual relationship between Wife and RoundPoint, as dispositive on the issue of authority to supply the phone number. So summary judgment was denied.
Notice that neither Plaintiff nor Wife nor Daughter ever asked for calls to stop or suggested that the number should not have been associated with the account. Yet the case is going to a jury on the issue of whether RoundPoint ever had consent to begin with.
I love this stuff.